HomeMy WebLinkAbout1984-0322.Steffens.85-02-12Between: OPSEU (Charles Steffens)
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
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Grievor
The,Crown in Right of Ontario
(Ministry of Correctional Services
Employer
Before: G. J. Brandt Vice Chairman
P. Craven Member
P. Camp Member
For the Grievor: N. A. Luczay Cr-iei'ii;ce Officer
Ontario Public Service Employees Union
For the Employer:' J. Whibbs
Regional Personnel Administrator
Per*sonnel Branch
Ministry of Correctional Services
Hearing: October 29, '1984
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Two matters are before the Board in these proceedings.. The
first is a grievance complaining that "I was removed' from the payroll
effective January 8th, 1984 without just cause". The second is a
grievance alleging that "Management is violating Article 51.10 of the
Collective Agreement in that.they required me to submit several additional
medical certificates without justcause." Briefly the issue involves
a determination as to whether or not-the Grievor was properly refused
sick leave pay in respect of. the period January 8th to January 29th
inclusive. .
There is no serious disagreement as, to the facts, The
Grievor is a Correctional~ Officer 2 employed at the Lindsay Jail. On
November 18th, 1983 he booked off sick from work,and was unable to
return to work until March .2nd, ,1984. Throughout that period .he
provided the Ministry with a number of medical certific,ates:!ihich _
the Ministry accepted for the purposes of paying sick leave. .However,
the Ministry judged one of the certificates to be inadequate and
refused payment in respect of a.period of time which that certificate
purported to cover. The grievance concerns the Griever's entitlement
to payment in respect of that par-titular period.
In order to. set the background,for the dispute it is helpful I
-to review the evidence with respect to the certificates which the
Griever did present and which were acceptable and with respect to
the efforts made both by the Grievor and by Mr. Campbell, the Superintenden
of the Lindsay Jail, to obtain suitable medical certificates; On
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Vovember 25th, 1983 the Grievor produced a medical certificate from
his personal physician, Dr. Graham, stating that he was "currently
disabled by his ulcer". That certificate was apparently accepted
by Mr. Campbell as adequate for the purposes of his absence from
November 18th to November 24th. On November 25th Mr. Campbell
spoke with the Grievor and arranged to meet with him on November 28th
to discuss his prognosis. However, on November 28th Mr. Campbell
was advised by the Grievor 's wife that he was hospitalized in Toronto
and was unable to attend at the scheduled meeting. At this time
Mr. Campbell was given no information as to the expected duration of
the absence althouqh the Griever' s wife h,ad agreed to provide a
further medical certificate.
Oa December 1st Mr. Campbell had occasion to speak with
the Griever's wife whc advised him that the Grievor was still
hospitalized. Mr. Campbell reminded her of the need for a medical‘
certificate. Later 'aat same day Dr. Graham contacted Mr. Campbell
and advised hrm that, based on his examination of the Grievor on
November 24ti, the Grievor would be absent for a period of up to
3 weeks depending on his response to a prescribed co.Jrse of treatment.
On DecenSer 5th Er. Campbell spoke aqain wth the Grievor's wife and
was advised that no additional information was available concerning
his pcssible return to work. Consequently, Mr. Campbell, on
December 6th, 1983 wrote to +be Grievor and informed him that in light
of the incompiete medical information surrounding his absence and
in liqht of the fact he had failed to provide a satisfactory medical
I
1
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certificate he, Mr. Campbell, had no alternative but to remove him
from the payroll effective December Sth, 1983. This. was followed
by a further letter on December 12th in which Mr:Campbell referred
to his earlier letter of December 7th and~to the fact that he had
been taken off the payroll.effective December 5th and concluded
by stating that since he had not yet received a$ communication regardin
the Grievor's.status he, Mr. Campbell, had no alternative but 'to declare
the Grievor's,position abandoned in accordance with Section 20 of ,
, the Public Service Act if the situation regarding the Griever's
absence was not clarified by December 26th, 1983. .
On December 13th the Ministry received a letter, dated
December' llth, 1983, from-Dr. L. Rotqtein, of the Toronto General
Hospital, certifying that the Grievor was in hospital for an acute
gastro intestinal illness which commenced in the middle of November.
The letter went on to recite that "To'datk, we do not have a firm
diagnosis and he is undergoing'further investigation. Until such
time as the diagnosis is made we have no good predictive date of
discharge. Please excuse him from his work during this period."
Apparently this letter was considered to be an adequate medical
certificate and the Grievor was reinstated on' the payroll effective
from December 5th, 1983, the date that he had been taken'off the
payroll.
The next contact which the Ministry had with the Grievor I
was on January 9th, 1984 when Mr. Campbell spoke to the Gr i
the telephone and enquired as to the status of his illness
evor on
Apparently1
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he was informed that the Grievor had been discharged from hospital
on December 17th, 1983 and he told the Grievor that he required a
medical certificate to cover the period from December 17th on. On
January 16th, 1984 Mr. Campbell wrote a letter to the Grievor reminding
him of the telephone conversation of January 9th and informing him
that, unless the Grievor provided a medical certificate to cover the
period from December 17th, 1983 on, he would be removed from the payroll
On January 20th, 1984 the Grievor produced another letter from Dr.
llows. Rotstein, a letter dated January 17th, 1984, wh ,i ch stated as fo
.
"This letter is to state that Charles .__ J. Seffens
has been under my care In hospital from November 27th
to December 17t.h, 1983 and again from December 28th,
1983 to January 7th, 1984 at which time he signed
himself out of the hospital. He plans to return to
work February 15th, 1984 and I see no reason why he
should not be able to do so."
It is the response of the Employer to this particular letter
which has given rise to this Grievance. On January 20th Mr. Campbell
informed the Grievor that, while Dr. Rotstein's letter of January
17th was acceptable to cover the period of his absence until January
7+h, 1984, Mr. Campbell required further information to certificate
that the Grievor was unable to attend to his official duties beyond
January 7th, 1984. The particular portion of the letter of
January 17th which caused Mr. Campbell concern was the reference to
the fact that the Grievor "plans to return to work February 15th, 1984"
Mr. Campbell told the Grievor that a statement of his plans did not
qualify as a medical certificate within the meaning of Article 51.10 I
of the Collective Agreement. I
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The Grievor chose not to provide any,furthercertif+ate.
.He'stated at the hearing that as far 'as he was concerned the letter
of January 17th covered him until February 15th and that there was
no need for any‘further certificate. ~'
~'. ;.
On January 24th, 1984 Mr. Campbell wrote again to.the
Grievor reciting the contents of the telephone conversation of
January 20th and. informing him that he, was to-be removed from payroll I
effective..January 8th, 1984 !'since,you have been.absen.f from duty
since that date with no medical certificate covering your absence." I
.: The letter concluded by insisting that then Grievor "provide a detailed
medical certificate from a qualified medical practitioner outlining I
your ability to perform the full range of Correctional Officer's duties
prior 'to-your ,return' tom work." Again the ,Grievor: chos'e not ,to
provide any further certificate with respect to the period in question. I
,
On or, about February 2nd, 1984 the Grievor.had occasion to I
visit a Doctor Lukinuk in connection with problems that he was having
with his leg. On February 9th, 1984 Mr. Campbell received a medical
'L certificate from Dr. Lukinuk stating that the Grievor had been under
his care from January 3Oti-1, 1984 and that.he would be able to return I
I to work on February 20th, 1984.~ The note indicated that the Grievor I
was suffering from a severe infection in the right' leg. Subsequently
there was a further note from Dr. Lukinuk, dated February 15th, 1984, I
which recited.that "This patient continues to have a severe leg infection
and is unable to work approximately until February 27th, 1984." ~Finally,
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on February 29th, 1984 the Grievor attended a medical examination with
his personal physican and was judged fit to return to work and he I
did return to work on March 2nd, 1984.
Apparently the two notes from Dr. Lukinuk were regarded by
the Ministry as adequate medical certificates for the Grievor was
reinstated on the payroll on January 30th, 1984.
The issue in this case is a very narrow one. Article 51.10
of the Agreement provides as follows:
"51.10 After five (5) days' absence caused by sickness,
no leave withpay shall be allowed unless a
certificate of a legally qualified medical
practitioner is forwarded to the Deputy Minister
of the ministry, certifying that the employee
is unable to attend to his official duties.
Notwithstandin9 this provision, where it is
suspected that there may be an abuse of sick
leave, the Deputy.Minister or his designee -
may require an employee to submit a medical
certificate for a period of absence of less
than five (5) days."
The Ministry takes the pos ition that, on the plain language of this
Article, no leave with pay shall be allowed unless a Grievor meets the
requirements of that section, that is, that he provide a certificate
from a legally qualified practitioner which certifies that he is
unable to attend to his official duties. It was argued that the
letter of January 17th, 1984 did not meet the requiremets of Article
51.10 in that it did not certify that the Grievor was not able to
attend to his official duties for the period following his discharge
,.
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from hospital on January 7th, 1984.
For its part the Union submitted that the letter,of January
17th, 1984 did constitute compliance with the requirements of Article , . I 51.10.'
In support of its position the Ministry referred the Board
to Re Orprecio 50/83. In that case the Grievor had requested a leave
of absence.without pay for: the purposes of visiting his dying father
in the Phillipines. He was denied the full period of hiss request
and, in due course, provided his Employer with a medical certificate
which recited that the Grievor had been examined and to have been found
"suffering from anxiety and depression, mainly from worrying about his
very sick father in the Phillipines!'. The medical note went on to
"suggest" that the Grievor take four to six weeks leave "to rectify
this nervous reaction as soon as possible." The note also indicated
. that the Grievor,had been put on sedatives and anti-depressants..
The Grievor was informed by hisEmployer that the medical
certificate would not: substantiate~.coverage under the short term
sickness plan. Notwithstanding that the Grievor went to the Phillipine:
and returned on April 5th, 1982. On April 7th he informed his Employer
that he would be returning to work on April 12th. On April 8th he
saw his Doctor and obtained a medical certificate which stated that
the Grievor had been in the Doctor's care "since February 26th, 19'82
and could return to~work on April 12th, 1982." A$ reasons for the
absenteeism the certificate indicated "nervous exhaustion and depression
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The Grievor was given a written reprimand and denied payment
of sick leave. In dismissing the claim for sick leave this Board
referred to Article 51.10 and concluded that the 2 certificates
provided by the Grievor did not contain sufficiently specific information
to qualify as medical certificates within +Lhe meaning of Article 51.10.
In particular it was noted that the certificate of February 26th was
unspecific as to the period of the sick leave and did not say that
the Grievor could not do his job if he was not Granted the leave. As
for the second certificate it too was, in the opinion of the Board,
inadequate in that it did not certify that the Grievor was unable to
do his job for the period of time that he.was away.
The Ministry in this case submits that the letter from
Dr. Rotstein of January 17th, 1984 was inadequate in the same respect,
that is, that it did not certify that the Grievor was unable to do
his job from January 7th on.
We have set out the facts in Re Orprecio in some detail
because they indicate some question in the mind of the Ministry in
that case as to the bona fides of the "alleged illness". On the --
surface the facts appear to indicate that the Grievor, having failed
in his attempt to obtain an extended leave of absence, sought to
accomplish his objective by availing himself of t3e sick leave plan.
1~ circumstances of that sort the contents of the medical certificate
ilave a significant bearing on whether or not the Grievor met the
basic criteria for entitlement to sick leave, that is, that he was
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"unable to attend tohis duties due to'sickness or injury." (Article 51.1
The instant case differs from Re Orprecio'in one important '~
respect. The Ministry here has at no time challenged the claim of the i.
Grievor that he was in;fact,,ill an.d unable to perform his .‘
the entire.period from November leth, 1983 to March 2nd, 1
our opinion the question as to whether or not the medical
duties throughou-
984. In
certificate
furnished by the Grievor was adequate must be examined in the light of
that fact. In view of the fact that the Employer does not challenge
the bona fides of-the Grievor's illness there can be no question that --. ._
the Grievor has brought himself within the provision of Article 51.1
which is the basic provision entitling him to sick leave. Given this
basic entitlement we.are unable to agree that the failure of the
Grievor to fully.meet what might be regarded as certain technical
requirements set out in Article 51.10, that is, that the cerficate _
, formally certify that the employee is unable to attend to his officiai
duties,. should deprive the Grievor of benefits to which~he is, on the
Employer's own admission, entitled.
We find some support in this conclusion by an examination
of how the Employer regarded~ certain other certificates whicfi the
Grievo~r provided throughout the course. of this period of illness.
The certificate of Dr. Graham of November 24th, 1983 merely recit~es
that "this man is currently disabled by his ulcer". There is
nothing in that note which formally c-ertifies his inability to attend
to his duties.. Nor is there any information in that note which
'could be said to meet the demands of Mr. Campbell as set out in his
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!.e!ter of January 24th, 1984 to the effect that the Grievor provide a
"detailed medical certificate"'outlining his "ability to perform
the full range of Correctional Officer‘s duties prior to his return
to work". Similarly the note from Dr. Lukinuk of February 9th,
1984 merely states that the Grievor had a severe infection in his
' right leg again with no indication as to the impact of that infection
on his ability to carry out his duties. Notwithstanding the some-
what cryptic nature of each of these notes the Employer was prepared
to accept them as adequate for the purposes of Article 51.10. No
doubt this was because the Employer had no real doubts as to the
bona fides of the Grievor's illness and as to the impact that it had
on his ability to carry out his job duties.
However, as indicated above, the response of Mr. Campbell
to Dr. Rotstein's letter of January 17th, 1984 was markedly different.
Whether or not that was due to some mounting frustration on Mr. Campbell's
part arising from his need to continually press the Grievor to provide
medical certificates, respecting his absences is not known. The
fact of the matter is that he chose to treat this letter as insufficient.
While we would agree that the letter is ambiguous as to the question
of the Grievor's fitness to perform his duties from January 7th on,
having regard to the fact that it is not disputed that the Grievor was
not fit to perform his duties, an admission which establishes the
Griever's basic entitlement to these benefits, we consider the certificate
supplied by the Grievor to be in substantial compliance with the
requirements of Article 51.10.
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Consequently we would allow the grievance and direct the
Em$loyer to pay to th' Grievor those benefits which have'been improperly
. denied to him.
DATED at London, Ontario this 12th . . day of february,lS85. . .
','~.~ .,. /g--y*
6. J. Brandt
Vice-Chairman I.
P. Craven
Member
"I dissent" (see attachedj- ----_ , P. Camp- --
Member
COMMENTS REGARDING AWARD
Re: 322/84 and 323/84 - OPSEU (Charles Seffens)
and The Crown in Right of Ontario (Ministry of Correctional services)
I have had the opportunity of reviewing the majority award.
I cannot agree that the letter from Dr. L. Robstien dated
January 17, 1984:
"This letter is to state that Charle-s J. Seffens
has been under ay care in hospital from November
27th to December 17th. 1983 and again from
December 28th 1983 to January 7th. 1984 at which
time he signed himself out of the hospital. Ae
plans to return to work February 15th, 1984 and I
see no reason why he should not be able to do so.”
meets the requirements of a certificate as required by the
Agreement, Article 51.10.
This letter has been compared to other certificates, namely -
Dr. Graham, November 24, 1983 and Dr. Lukinuk, February 9. 1984.
The prime difference in these letters (or notes), are that Dr.
Graham's and Dr. Lukinuk's are based on actual examination of the
Grievor. Dr. Robstien's letter is just a record of what Steffens
had personally decided to do, that is check himself out of
Toronto General Hospital without any apparent consultation with
Dr. Robstien.
. . . ..I2
I
,’
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Re: 322184 and 323184 - OPSEU (Charles Seffens)
and The Crown in Right of Ontario
(Ministry of Correctional Services)
Based on these.~considerations, I would have dismissed the
grievance.
In comment : This matter could have been resolved at any time
between February 23,,1984 (date of Grievance) and October 29,
1984 (date of Hearing) simply by Steffens-obtaining additional
medical information for Mr.~ Campbell. In evidence Steffens
stated that this would have been easy.
A very basic degree off co-operation on the part of theGrievor
would have avoided the necessity of Arbitration and have saved
both the ‘time and. expense related to these procedings.
P.D. CAMP
Consultant
Labour Relations ‘,
PDCifs
v
. .
COMMENTS REGARDING AWARD
Re: 322184 and 323184 - OPSEU (Charles Seffens)
and The Crown in Right of Ontario
(Ministry of Correctional Services)
I have had the opportunity of reviewing the majority award.
I cannot agree that the letter from Dr. L. Robstien dated
January 17. 1984:
"This letter is to state that Charles J. Seffens
has been under ny care in hospital from November
27th to December 17th, 1983 and again from
December 28th 1983 to January 7th. 1984 at which
time he signed himself out of the hospital. He
plans to return to work February 15th. 1984 and I
see non reason why he should not be able to do so."
meets the requirements of a certificate as required by the
Agreement, Article 51 .lO.
This letter has been compared to other certificates, namely -
Dr. Graham, November 24, 1983 and Dr. Lukinuk, February 9, 1984.
The prime difference in these letters (or notes), are that Dr.
Graham’s and Dr. Lukinuk’s are based on actual examination of the
Griever. Dr. Robstien’s letter is just a record of what Steffens
had personally decided to do, that is check himself out of
Toronto General Hospital without any appaient consultation with
Dr. Robst ien.
. . . ..I2